Software industry critical of bill

RIGHT TO COPYRIGHT

Proposed legislation that would allow federal agencies to copyright some software has sparked a wide-ranging debate over the commercialization of government research.

The bill, sponsored by Representative Constance A. Morella, R-Md.-8th, has enraged some software industry representatives. They see it as a perilous precedent that may promote public sector enterprise at the expense of private industry.

Supporters of the bill, meanwhile, say copyright law must be revised to commercialize products and devices developed in government laboratories. And they have touched on the hot-button of "competitiveness" to lend urgency to the bill, which is scheduled to reach the House floor this fall.

Mrs. Morella's bill would amend the federal law that has forced national labs to make their research public as a means to fuel the engines of industry. Her proposal authorizes federal agencies to secure copyrights on software developed in "cooperative research and development" agreements with private companies.

Officials at six government agencies claimed the government's exclusion from software copyright "constrained the transfer and use of software with wider commercial applications," a 1990 General Accounting Office report said. "Businesses are unwilling to invest in this software without copyright protection and some guarantee of exclusivity."

Federal labs, run by such agencies as the Department of Agriculture and the National Institutes of Health, collaborate on creative research with many private companies. Yet no inventions can be commercialized, because the government can't hold copyright to computer programs or even the hardware-embedded software code that drives the new technologies, the bill's supporters say.

The Department of Agriculture, for example, developed software called GOSSYM-COMAX, a program for predicting the crop yields of cotton using variables such as rainfall and hours of sunlight.

Since the software was government-developed, the code was in the public domain and no company could commercialize it -- even though one was very interested, said Bill Talent, assistant administrator at the U.S. Department of Agriculture. Hundreds of farmers now use the software, and the costs of updating, maintaining and training farmers to use it costs the Agricultural Extension Service about $500,000 annually.

"If it were commercialized, the company would take it and market it. Some computer companies would be much better at it, it would be a better product. All around a better deal," Mr. Talent said.

Software companies also are slow to come to the table with their own existing code and software secrets because, the bill's supporters say, in a collaboration with the government, copyright protection cannot be extended.

James Chandler, a George Washington University law professor who supports the bill, says the bill speaks to larger concerns of national competitiveness.

Mr. Chandler says the federal government spends $100 billion a year on research -- mainly for software -- and all of it is available to Asian and European competitors, free of charge.

"As a consequence, America provides basic research that fuels industrial engines of the world," he said. "Why should they do so? There's no good reason."

Still, software industry representatives fear that the government might have more entrepreneurial aims. And Mrs. Morella, outlining the bill in the Congressional Record, might have given them reason to believe that it does.

"Without an appropriate policy dealing with the commercialization of federally developed computer software, the prospects for its development and commercialization are limited. Merely making software available without proprietary protection is insufficient to ensure its effective commercialization," she wrote.

Steve Metalitz, vice president and counsel for the Information Industry Association, said, "There is most definitely a much broader agenda that shows in this bill. Part of it is a much larger copyright role for government."

He also rejects the claim that cooperative ventures between government and industry are limited by the government's bar from copyright. "I think there are about 500 agreements in effect right now between government and non-federal institutions, companies and universities," he said.

Doug Jerger, chief counsel for Adapso, the software industry association, says the legislation seems like a replay of the Commerce Department's distribution of cheap software -- a practice that Adapso successfully lobbied the department to stop years ago.